Gujarat High Court
Shah Ashokbhai Chamanji vs State Of Gujarat on 24 March, 2022
Author: A. P. Thaker
Bench: A. P. Thaker
C/SCA/7809/2018 ORDER DATED: 24/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7809 of 2018
==========================================================
SHAH ASHOKBHAI CHAMANJI
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR. NISHIT P GANDHI(6946) for the Petitioner(s) No. 1,2,3,4
MR NIKUNJ KANARA, AGP for the Respondent(s) No. 1,2,3
MR. JAVED S QURESHI(6999) for the Respondent(s) No. 4
==========================================================
CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 24/03/2022
ORAL ORDER
1. By filing this petition, the petitioners have prayed to quash and set aside impugned order dated 19/22.03.2018 passed by the respondent-SSRD in Revision Application No.MVV/HKP/BNS/ 101/2016 as well as the order dated 03.12.2016 passed by the learned District Collector in B/Jamin- 4/Suo-motu/Revi.Case No. 127 of 2014.
2. The brief facts giving rise to the present petition are as under:-
2.1 It is stated that the issue pertains to land bearing Revenue Survey No. 119p1, at Mouje-Jegol, Taluka-Dantivada, District- Banaskantha (hereinafter referred to as 'land in question'). It is stated that the land in question originally belonged to respondent no. 4 i.e. Koli Ramanbhai Revabhai.
Respondent no. 4 sold the land in question vide registered Sale Deed dated 23.05.2006 to petitioner no. 1. It is further stated that revenue entry no.1437 dated 13.07.2006 was mutated in Page 1 of 13 Downloaded on : Sun Mar 27 21:44:50 IST 2022 C/SCA/7809/2018 ORDER DATED: 24/03/2022 the Revenue Record on the basis of the said sale transaction and the same was certified on 16.10.2006.
2.2 It is also stated that other petitioners being Class-I heirs of petitioner no.1, their names are mutated in the revenue record qua the land in question vide revenue entry no.1881 dated 24.10.2011. It is further stated that aforesaid both the revenue entries were taken in suo motu revision by the respondent - District Collector in B/Jamin/4/Suo-motu/Revision Case No.127 of 2014. It is further stated that said proceedings were initiated almost after gross delay of 8 years. It is further stated that initiation of said proceedings were also without authority of law as the entry on the basis of registered Sale Deed has to be mutated in the Revenue Record. It is further stated that no proceedings are initiated under the Bombay Tenancy and Agricultural Lands Act, 1948 to declare the petitioners as non-agriculturist and, therefore also, learned District Collector could not have initiated suo-motu proceedings under the provisions of Rule 108 (6) of the Gujarat Land Revenue Rules, 1972.
2.3 It is stated that the petitioners also filed their detailed reply to said notice pointing out that the petitioners are agriculturists and the proceedings are bad because of delay and laches. It is respectfully stated that without considering reply of the petitioners and without considering the decisions cited at the bar, learned District Collector vide impugned order dated 03.12.2016 cancelled revenue entry nos.1437 and 1881. It is stated that said order of learned District Collector was challenged by the petitioners before learned SSRD by preferring Revision Application No.MVV/HKP/BNS/101/2016.
Page 2 of 13 Downloaded on : Sun Mar 27 21:44:50 IST 2022C/SCA/7809/2018 ORDER DATED: 24/03/2022 2.4 It is stated that without appreciating proper facts of the
case and without appreciating decisions cited, learned Special Secretary, Revenue Department, Ahmedabad, also passed impugned order dated 19/22.03.2018, whereby revision application of the petitioners was rejected.
2.5 Being aggrieved by the impugned order dated 19/22.03.2018 passed by the respondent-SSRD in Revision Application No.MVV/HKP/BNS/101/2016 as well as order dated 03.12.2016 passed by learned District Collector in B/Jamin/4/Suo-motu/Revi.Case No.127 of 2014, the petitioners have preferred present petition.
3. Heard learned advocate Mr.Nishit Gandhi for the petitioners, learned AGP, Mr.Nikunj Kanara for the respondent- State and learned advocate Mr.Morakhia for private respondent.
4. Mr.Nishit Gandhi, learned advocate for the petitioners has reiterated the facts narrated herein above, and submitted that the impugned orders are contrary to law and evidence on record. He submitted that grand-parents of the petitioners were "agriculturists" and mother of the petitioners was also an "agriculturist" and was having share in the land. He further submitted that revenue entry to that effect has already been mutated in the revenue records. He submitted that originally land belonged to respondent no.4, who sold the land in question to petitioner no.1 by way of registered Sale Deed dated 23rd May 2006 and necessary entry to that effect was mutated and certified in 2006 itself. He submitted that names of the petitioners came to be mutated in the revenue record Page 3 of 13 Downloaded on : Sun Mar 27 21:44:50 IST 2022 C/SCA/7809/2018 ORDER DATED: 24/03/2022 vide entry no.188 dated 24.10.2011. He submitted that these entries were taken into suo motu revision by the revenue authority after gross delay of almost 8 years. He has submitted that no proceedings were initiated under the Bombay Tenancy and Agricultural Lands Act to declare the petitioners as non- agriculturists. He submitted that suo motu action was taken under RTS proceedings but the revenue authority could not have passed any order as is passed in the present matter. He submitted that the impugned order is passed by cross- utilization of powers under different Acts, which is not permissible under law. He also submitted that the respondent- District Collector has initiated suo-motu proceedings after gross delay of almost 8 years, which is not permissible. He also submitted that the authority exercising powers under one enactment cannot assume breach of another enactment, therefore, the impugned orders are completely without authority and jurisdiction. He submitted that private respondent has already sold the land to the petitioner and, therefore, he has no locus to oppose the petition.
4.1 Mr.Gandhi further submitted that Sale Deed in favour of petitioner no. 1 is not challenged before any competent Court and the same is not quashed by any Court. He also submitted that the revenue entry no.1437 was mutated on the basis of the registered Sale Deed. He further submitted that suo motu proceedings are required to be initiated within reasonable period. He also submitted that the order passed by the respondent District Collector is without assigning any proper reasons. He also submitted that there is no dispute inter-se among the family members. He further submitted that the Page 4 of 13 Downloaded on : Sun Mar 27 21:44:50 IST 2022 C/SCA/7809/2018 ORDER DATED: 24/03/2022 judgments cited at bar are not considered at the time of passing the impugned orders.
4.2 He further submitted that the respondent - District Collector as well as SSRD erred in holding that the petitioners are not agriculturists. It is further submitted that the petitioners are jointly cultivating the land in question and, in the family partition, the land came to the share of the mother of the petitioners. He also submitted that there are no orders of competent authority holding that the petitioners are not agriculturists.
4.3 He has relied upon following decisions in support of his submissions.
(i) Jt.Collector Ranga Reddy Dist. v. D. Narsing Rao and Ors.
Etc. reported in 2015 (3) SCC 695.
(ii) Jhaverbhai Savjibhai Patel through POA Holder Ashok J.
Patel v. Kanchanben Nathubhai Patel and Others reported in 2005 (3) GLH 657.
(iii) Evergreen Apartment Co-operative Housing Society Ltd.
v. Special Secretary (Appeals), Revenue Department reported in 1991 (1) GLH 155.
(iv) Kanuben Daguther of Jaysinh Khushalsinh v. State of Gujarat reported in 2001 JX (Guj) 23.
(v) Raghuvirsinh Sardarsinh Saluja Legal Heirs v. Special Secretary (Appeals) reported in 2020 JX (Guj) 966.
(vi) Kalidas Rupabhai v. State of Gujarat reported in 2002 (2) GLH (U.J.) 6.
(vii) Laxmiben S. Patel v. D.Y.Collector reported in 2001 (2) GCD 1065.
Page 5 of 13 Downloaded on : Sun Mar 27 21:44:50 IST 2022C/SCA/7809/2018 ORDER DATED: 24/03/2022 (viii) Labhubhai Valjibhai Gajera v. Secretary (Appeals),
Revenue Department, Gujarat State and Others reported in 2011 (1) GLH 432.
(ix) Kankuben J. Bharwad v. State of Gujarat and Another reported in 2006 (3) GLH 659.
5. On the other hand, Mr.Morakhia, learned advocate for respondent no.4 vehemently submitted that respondent no.4 was not heard by the Collector or the SSRD. He has submitted that since the petitioners are not agriculturists, order passed by the authorities are proper. He has also submitted that since the petitioners are not agriculturists, they cannot purchase the land in question and, therefore, the impugned orders do not require any interference by this Court. He, therefore, prayed to dismiss present petition.
6. Learned AGP, Mr.Nikunj Kanara for the State has vehemently submitted that since the petitioners were not agriculturists, they cannot purchase the land in question and, therefore, the action of purchase of land is void ab-initio. He has submitted that, in view of this fact, question of limitation does not arise. He submitted that the orders passed by revenue authorities are in consonance with law and there is no cross utilization of powers by the authority. He, therefore, prayed to dismiss present petition.
7. In rejoinder, Mr.Gandhi, learned advocate for the petitioners submitted that since there was no proceeding initiated under the Tenancy Act, the authority has no power under Rule 108 (6) of the Gujarat Land Revenue Rules. He has submitted that revenue entry was made way back in the year Page 6 of 13 Downloaded on : Sun Mar 27 21:44:50 IST 2022 C/SCA/7809/2018 ORDER DATED: 24/03/2022 2006 and, the authority was knowing this fact very well, inspite of this the action was taken after 8 years. He has submitted that entire exercise of powers of suo motu revision is beyond reasonable time. He submitted that therefore present petition deserves to be allowed and it may be allowed.
8. In the case of Jt.Collector Ranga Reddy Dist. (supra) while dealing with the aspect of exercise of suo motu powers of revision after a long lapse of time, it was held by the Apex Court that if exercise of powers of suo motu revision after a long period of time is allowed, it would lead to anomalous position leading to uncertainty and complications seriously affecting the rights of the parties over immovable properties. It was further observed that exercise of powers of suo motu revision after a long lapse of time, even in absence of any period of limitation was arbitrary and opposed to the concept of rule of law.
8.1 In the case of Jhaverbhai Savjibhai Patel through POA Holder Ashok J. Patel (supra), this Court has referred to the observations in the case of Jayantilal Jethalal Soni v. State of Gujarat as well as in the case of Hasmukhbhai Kasturchand Shah and heirs of Dahiben Wd/o. Shanabhai Bhulabhai and Hirabhai and has reproduced paragraphs 4 and 5 of said decision, wherein it was observed that exercise of power of suo motu revision cannot be undertaken after unreasonable period and further revenue entries are having values for fiscal purpose and they never confer any right nor do they alter any right in the property, which otherwise exists as per the provisions of the Transfer of Property Act or the relevant law for the time being in force.
Page 7 of 13 Downloaded on : Sun Mar 27 21:44:50 IST 2022C/SCA/7809/2018 ORDER DATED: 24/03/2022 8.2 In the case of Evergreen Apartment Co-operative Housing
Society Ltd. (supra) this Court has observed in paragraph 12 as under:-
"12. There is much substance in the second submission of Mr. Hawa also. Ordinarily when a transfer of property takes place by a registered account an entry is effected in the revenue record and it is certified by the mamlatdar after making necessary inquiries. If there is any dispute regarding mutation, the dispute has to be entered in the register of the disputed cases and then such disputes are to be disposed of by the Mamlatdar. Under sub-rule (5) of Rule 108 of the Rules, the aggrieved party can prefer an appeal within 60 days from the date of the service of the order. The State Government has power to call for and examine the record of any enquiry or the proceedings of any subordinate revenue officer and to review the same under sub-rule (6) of the rules. It is to be noted in the present case that no appeal had been presented within 60 days from the date of Mamlatdar's order certifying the initial entry. the Assistant Collector, Surat took the said entry in suo motu revision, even though he had no such power under the provisions of Rule 108. It, therefore, appears that the Additional Chief Secretary, Revenue Department remanded the proceeding to the Collector for treating the same as an appeal. This was done after a period of 4 years after certification of the entry. It was only the State Government which had the power to call for a record of inquiry or proceeding under sub-rule (6) of Rule 108. Even the State Government was empowered to satisfy itself "as to the regularity of such proceedings and as to the legality or propriety of any decision or order passed in such proceedings". So the entire inquiry and revisional power has to proceed under the Bombay Land Revenue Rules and not under any enactments like the Bombay Tenancy and Agricultural Lands Act, Urban Land (Ceiling and Regulation) Act or Bombay Prevention of Fragmentation and Consolidation of Holdings Act. It is quite possible that an officer of the Revenue Department may be occupying different capacities under different enactments. That, however, would not empower him to exercise any powers under one enactment while proceeding under another enactment. So far as the proceedings under Rule 108 of the Rules, popularly known as RTS proceedings, are concerned, it is well settled that the entries made in the revenue records have primarily a fiscal value and they do not create any title. Such mutations have to follow either the documents of title or the orders passed by competent Page 8 of 13 Downloaded on : Sun Mar 27 21:44:50 IST 2022 C/SCA/7809/2018 ORDER DATED: 24/03/2022 authorities under special enactments. Independently the Revenue Authorities, as mentioned in Rule 108 of the Rules, cannot pass orders of cancelling the entries on an assumption that the transaction recorded in the entry are against the provisions of a particular enactment. Whether the transaction is valid or not has to be examined by the competent authority under the particular enactment by following the procedure prescribed therein and by giving an opportunity of hearing to the concerned parties likely to be affected by any order that may be passed. Thus on this second ground also the orders of the Collector and the Additional Chief Secretary appear to be beyond their jurisdiction. The Additional Chief Secretary has held that the sale by auction was not consistent with the provisions of Section 27 of the Urban Land (Ceiling and Regulation) Act. Section 27 relates to prohibition of transfer of any urban land with a building thereon. Apart from the legal position that Section 27 has been struck down as ultra vires, it is quite obvious that no such question of transferring urban land with a building thereon has ever arisen in the present case. Thus, the order of the Revisional authority has proceeded on a misconception of relevant legal provisions also."
8.3 In the case of Kanuben Daguther of Jaysinh Khushalsinh (supra), exercise was undertaken by the revenue authority for cancelling mutation entry on the basis of applicability of Section 84 (C) of the Bombay Tenancy and Agricultural Lands Act. It was held in that case that revenue authority cannot undertake such exercise while deciding mutation matter in RTS proceedings or deciding revision under Section 211 of the Bombay Land Revenue Code and cannot determine the validity of sale transaction upon which entry was made in the revenue record on the basis of Sale Deed. It was held that the authority cannot exercise power under Section 84-C of the Gujarat Tenancy Act.
8.4 In the case of Raghuvirsinh Sardarsinh Saluja Legal Heirs (supra), it was held that the revenue authority has no power to hold that the transfer was in breach of Section 63 of the Page 9 of 13 Downloaded on : Sun Mar 27 21:44:50 IST 2022 C/SCA/7809/2018 ORDER DATED: 24/03/2022 Bombay Tenancy and Agricultural Lands Act, 1948 because the property was bequeathed by Will cannot be termed as "transfer" and even probate was not necessary. It was held that even in RTS proceedings, it is not open for the Collector to consider whether the person is an "agriculturist" or a "non- agriculturist" and such a question can only be determined under the provisions of the Bombay Tenancy Act.
8.5 In the case of Kalidas Rupabhai (supra), exercise of passing an order under Section 211 of the Bombay Land Revenue Code directing the competent authority to initiate proceedings under 9 of the Bombay Prevention and Fragmentation and Consolidation of Holdings Act, 1947 was held to be without authority of law. It was held that exercise of such power by an officer acting under one enactment and issuing direction under another enactment is without authority of law.
8.6 In the case of Laxmiben S. Patel (supra), it was held that exercise of powers of revision after a long lapse of time is liable to be quashed and set aside.
8.7 In the case of Labhubhai Valjibhai Gajera (supra), it is held that exercise of power of suo motu revision after a long lapse of time is arbitrary.
8.8 In the case of Kankuben J. Bharwad (supra), the facts of the case were that the land was purchased by daughter of an agriculturist and entry was mutated to that effect. Thereafter, proceedings under Section 84 (C) of the Bombay Tenancy and Agricultural Lands Act, 1948 came to be initiated before Page 10 of 13 Downloaded on : Sun Mar 27 21:44:50 IST 2022 C/SCA/7809/2018 ORDER DATED: 24/03/2022 Mamlatdar and ALT on the ground that purchase of land was by a non-agriculturist and transaction was between agriculturist and non-agriculturist. The fact was that father of the petitioner was an agriculturist and she married to a non- agriculturist. It was held that if a woman has married to a non- agriculturist that would not result into abolition of her status as an "agriculturist".
9. Having considered the submissions made by both the sides coupled with aforesaid decisions and the material placed on record, it is an undisputed fact that the land in question belonged to respondent no.4, who sold it to the petitioner way back in the year 2006 and entry to that effect was also certified. It is also an undisputed fact that heir-ship entry was also mutated in the revenue records vide entry no.1881 dated 24.10.2011. Aforesaid entry came to be taken into revision by respondent-Collector after delay of almost 8 years. It reveals from record that the ground raised is that the petitioner is not an agriculturist, however, no proceedings under the Bombay Tenancy Act have been initiated. While exercising powers under the RTS proceedings, earlier two entries of 2006 and 2011 are ordered to be set aside by learned Collector. It also reveals that mutation entry remained on record for a long period of time and that entry was never challenged by anybody. The revenue authority was within the knowledge of these entries. At this juncture, it is necessary to refer to the affidavit filed by petitioner no.1, which is at page 72-73 of the compilation. In the said affidavit, it is specifically stated that mother of the petitioner was an agriculturist and name of the petitioner along with her brother was mutated as joint owner of the land bearing Revenue Survey No.102p1, Village, Page 11 of 13 Downloaded on : Sun Mar 27 21:44:50 IST 2022 C/SCA/7809/2018 ORDER DATED: 24/03/2022 Hariyavada, Taluka-Dantivada, District-Banaskantha and after death of his mother, names of heirs including name of petitioner no.1 was mutated vide entry no.554. It is also stated that the petitioners are doing agricultural activities and are agriculturists. Along with this affidavit, he has produced revenue record. Now, admittedly in this case, revenue authority was dealing with the RTS proceedings and no proceeding under the Bombay Tenancy Act was initiated against anybody. In the RTS proceedings, impugned order came to be passed cancelling revenue entry solely on the ground that the petitioners are not agriculturists. Thus, exercise of power by the Collector in RTS proceedings is beyond the scope of power and authority available under the Bombay Tenancy Act.
10. In view of various decisions, referred to herein above, it has been held that the authority while exercising powers under a particular enactment cannot decide the question under another enactment, though it may happen that the same authority holds the capacity to act under both enactments. Exercise of powers by learned Collector in the impugned proceedings is completely without jurisdiction and not sustainable in the eyes of law. Such exercise of powers is also beyond the period of limitation. On both these counts, impugned orders passed by the authorities are not sustainable in the eyes of law and the same deserve to be quashed and set aside.
11. Accordingly, this petition is allowed. The impugned order dated 19/22.03.2018 passed by the respondent-SSRD in Revision Application No.MVV/HKP/BNS/ 101/2016 as well as the Page 12 of 13 Downloaded on : Sun Mar 27 21:44:50 IST 2022 C/SCA/7809/2018 ORDER DATED: 24/03/2022 order dated 03.12.2016 passed by the learned District Collector in B/Jamin-4/Suo-motu/Revi.Case No. 127 of 2014 are quashed and set aside. No order as to costs. Direct service is permitted.
Sd/-
(DR. A. P. THAKER, J) R.S. MALEK Page 13 of 13 Downloaded on : Sun Mar 27 21:44:50 IST 2022